Tiers for the Establishment Clause

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When compared with other constitutional doctrines, Establishment Clause doctrine is confused and anomalous, both substantively and with regard to standing. The Supreme Court ought to craft reforms in light of a wide‐angle appraisal of pertinent comparisons, analogies, and interconnections. Substantively, the Justices should adopt the tiers‐of‐scrutiny approach that the Court employs under the Free Exercise, Free Speech, and Equal Protection Clauses. Within a tiered‐scrutiny regime, the Court should strictly scrutinize any statute that classifies or requires classifications based on religion. It should prescribe intermediate scrutiny for statutes that expend tax revenues to provide material benefits to churches or religiously affiliated organizations on a nondiscriminatory, nonpreferential basis. And it should clarify its approach to determining which symbolic supports for religion rise to the level of Establishment Clause violations. Correspondingly, the Court should realign standing doctrine to equate the injuries needed for standing more closely with those against which the Establishment Clause furnishes substantive protection.

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